In light of this news, many people are pointing out the obvious fact that Ginsburg and Breyer acted very irresponsibly by not resigning in 2013, and therefore there are also numerous arguments in defense of the proposition that the personal professional fulfillment of individual justices is more important than the reproductive freedom of American women, the right to vote, whether the federal government can provide healthcare to poor people. etc. etc.
Perhaps the most superficially respectable of the arguments denying the obvious is that Ginsburg and Breyer would have been shattering a longstanding norm that justices should not consider who will replace them when deciding whether or not to retire. The problem is that this is total ahistoricial bullshit. There is no such norm. Since the parties became prototypes of what they would become today in 1964, it is eminently clear that strategic resignations are in fact more the rule than the exception:
- Earl Warren, who hated Nixon, resigned in 1968 out of a justified that Nixon would win and be able to nominate his replacement. LBJ screwed it up and the old conservative coalition won one more once in an oddly under-discussed event of great historical significance, but this doesn’t change the fact that Warren retired strategically.
- Potter Stewart resigned as soon as the term after Reagan’s inaugural ended.
- Burger and Powell are less obvious cases, but resigned with Reagan in office; they’re certainly not counter-examples.
- Brennan and Marshall were unable to resign strategically, but not for lack of trying. Both very strongly did not want to be replaced by a Republican president and stayed on for years in horrible health hoping to live to see the next Democratic administration. Brennan was forced off the Court by a massive stroke and Marshall resigned on his near-deathbed with Bush’s approval rating north of 70%, and on his way out said “there’s no difference between a white snake and a black snake. They’ll both bite.” Neither of them believed there was a norm that required them not to consider who would replace them.
- Blackmun, who was very invested in the survival of his most famous opinion, stayed until Clinton was elected and resigned midway through his first term.
- Byron White, a conservative but still a Democratic partisan, consciously and explicitly waited to resign until a Democratic president was elected although he had been sick of the job for a long time.
- Both Stevens and Souter waited until Obama was elected to resign. (It is striking that there have now been three Republican nominees who have put more weight on the survival or Roe v. Wade than Clinton’s two nominees.)
- If you think Anthony Kennedy would have resigned in 2018 if Hillary Clinton had won in 2016, I have 20 acres of oceanfront property in Shelby County, Alabama to sell you.
And even the few counterexamples aren’t really counterexamples. William Rehnquist — the old polling booth enforcer who used to tell his clerks not to worry to much about the reasoning of their opinions and prioritize speed — stayed on the Court until death despite series health problems not out of some pious commitment to the Rule of Law but because he really liked the job and the power that came with it. Should we think more highly of Hugo Black because he stayed on the Court long enough to not only be replaced by Nixon but to become an old-man-yelling-at-clouds crank? We should not.
Anyway, whatever motivated Ruth Bader Ginsburg to stay on the Court, it’s not because of a longstanding norm that justices refuse to consider who will nominate their replacement. There is no such norm; it’s just something made up by people who (correctly) admire Ginsburg and (very, very wrongly) want to defend her irresponsible decision not to resign in 2013. Indeed, it’s pretty obvious that Ginsburg herself doesn’t really believe this — does anybody think she considered resigning when her latest serious health scare hit?